Ohio attorney creates fake child porn for case, now must pay $300,000

He altered pics of girls to be explicit in arguing against "overbroad" law.

In case it wasn't clear, you can definitely be busted for digitally manipulating photographs to make them look like child pornography—or as it’s sometimes called, child abuse imagery. And even if it wasn't against the law, it’s certainly a terrible idea. Still, that didn't stop an Ohio lawyer and former state prosecutor—who has often been called upon as an expert witness to testify that child porn laws are so overbroad that they cover fictional, digitally altered photos—from doctoring up his own.

On Friday, the United States Court of Appeals for the Sixth Circuit ruled (PDF) in favor of a district court in Ohio that had previously found Dean Boland, a self-described "qualified computer expert," liable to pay $300,000 to the families of the two girls that brought suit against him. Boland did not respond to Ars' requests for comment.

In 2004 and 2005, Boland had previously purchased stock images of the two girls, then five- and six-years-old, and digitally altered them to make them sexually explicit. In one case, Boland chose a photo of a six-year-old girl eating a donut and changed it to make it appear that she was performing oral sex on an adult man. In the other, according to the Sixth Circuit’s decision, he put "six-year-old Jane Doe’s face onto the body of a nude woman performing sexual acts with two men."

Boland used those images as part of a state court case in Ohio and a federal case in Oklahoma, where he was an attorney defending clients with child pornography charges. In the Ohio and Oklahoma cases, Boland used his created images to argue that it was "impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor."

The FBI became aware that Boland had created the explicit images for use in court, at which point it investigated possible child pornography charges. By 2007, the parents of the girls in question filed a civil lawsuit under a federal law that allows them to pursue monetary damages from the perpetrators. Last year, a federal district judge awarded the families $300,000, a decision that Boland appealed. That decision was affirmed Friday by the Sixth Circuit.

In his defense, the Ohio attorney argued that he was immune from a civil suit because he only created the images for use in court, never distributed them beyond the court room, and was protected by the First Amendment’s freedom of expression provision. The court obviously disagreed—frankly, we're a bit surprised that Boland would argue the First Amendment, given that obscene speech is not protected.

In its decision, the court wrote (PDF) that creating these images was not Boland’s "only option."

"He could have shown the difficulty of distinguishing real pornography from virtual images by transforming the face of an adult onto another, or inserting a child’s image into an innocent scene," they wrote. "If he felt compelled to make his point with pornography, he could have used images of adults or virtual children. Instead, he chose an option Congress explicitly forbade: morphed images of real children in sexually explicit scenes. That choice was not protected by the First Amendment, and the children therefore are entitled to the relief Congress offered them."

110 Reader Comments

Kinda sad news all around. I can see the point he was trying to make, but if he had mad photoshop skilz couldn't he have also altered the stock-photo faces enough that they couldn't be recognized as the actual human models?

If images are obviously digital, i.e. resembling computer graphics or hand drawn, then criminal prosecution should be avoided as there is no victim.

But in cases where it could be actual child abuse or real pictures doctored to look like child abuse you can't use that as a defense as that would make it impossible to prosecute anyone for possessing child pornography, which I think the majority of society would not support. I think if a reasonable person would assume it was real child pornography that depicts real boys and girls then it should be criminal to posses such pictures.

Obviously faked pics created in the name of dark humor should not be criminalized.

The court obviously disagreed—frankly, we're a bit surprised that Boland would argue the First Amendment, given that obscene speech is not protected.

Obscene speech is not protected, but most pornography is not legally considered obscene. While many politicians are trying to muddy the waters, the reason a ban on child porn can be legal despite not being obscene is because it inherently means a child has been abused. No child was abused here, so that argument is out the window. Obscenity is not well defined, so claiming that it's not obscene is quite reasonable.

brionl wrote:

Yeah, no. You can get arrested for cartoon pictures of fictional characters having sex in the US too.

Sort of. You can get arrested under a minor modification of a law that was previously ruled unconstitutional that has not yet been ruled unconstitutional itself because they added 'obscene' to it.

Actually, I'm looking at it this way. He not only succeeded in his argument, it went right over the judge's head and around the world back at him.

There were no obscene images of children. There were images in which childrens faces were inserted. At no time were children exposed, harmed, or sexualised.

His point was that it's easy enough to create images that are not child porn, but which might appear so on a casual inspection. Apparantly, he did such a good job, he made his point to the extent the FBI thought it WAS child porn (which says all sorts of things about the FBI, like 'TSA-level competence') and then convinced a court of it, TWICE.

Frankly, he made his point TOO well. I think it's a wrong decision by the courts, and should have been covered by qualified privilege.

The court obviously disagreed—frankly, we're a bit surprised that Boland would argue the First Amendment, given that obscene speech is not protected.

Obscene speech is not protected, but most pornography is not legally considered obscene. While many politicians are trying to muddy the waters, the reason a ban on child porn can be legal despite not being obscene is because it inherently means a child has been abused. No child was abused here, so that argument is out the window. Obscenity is not well defined, so claiming that it's not obscene is quite reasonable.

brionl wrote:

Yeah, no. You can get arrested for cartoon pictures of fictional characters having sex in the US too.

Sort of. You can get arrested under a minor modification of a law that was previously ruled unconstitutional that has not yet been ruled unconstitutional itself because they added 'obscene' to it.

Uhhmmm.... actually, at one time most pornography WAS considered obscene, and therefore not protected under the Constitution. I keep finding myself thinking that this "the Constitution doesn't protect speech that's obscene" argument is one of those things that someone read between the lines of the Constitution, or convinced a bunch of people WAS in there, to try to sneakily end run around what was meant to be an absolute, without anyone noticing that that's what they've done, and while convincing themselves that they're correct on this, too. But I also think it might come back to bite us later, because the definition of "that which is obscene" is purely subjective and arbitrary, and one person's "obscene" is someone else's beloved art.

Actually, I'm looking at it this way. He not only succeeded in his argument, it went right over the judge's head and around the world back at him.

There were no obscene images of children. There were images in which childrens faces were inserted. At no time were children exposed, harmed, or sexualised.

His point was that it's easy enough to create images that are not child porn, but which might appear so on a casual inspection. Apparantly, he did such a good job, he made his point to the extent the FBI thought it WAS child porn (which says all sorts of things about the FBI, like 'TSA-level competence') and then convinced a court of it, TWICE.

Frankly, he made his point TOO well. I think it's a wrong decision by the courts, and should have been covered by qualified privilege.

The FBI investigated him because he discussed his creation of the images in his expert testimony. They didn't screw up.

From the ruling:

Quote:

Boland used the images as part of his expert testimony in two Ohio state-court proceedings and a federal criminal trial in Oklahoma involving child pornography. He displayed “before-and-after” versions of the images, testifying that it would be “impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor.” R. 77-2 at 119.

Such images are in fact illegal, and he knew this.

Quote:

In April 2007, Boland entered a pre-trial diversion agreement with the U.S. Attorney’s Office for the Northern District of Ohio, in which he admitted violating 18 U.S.C. § 2252A(a)(5)(B) by knowingly possessing a “visual depiction {that} has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” R. 73-1; 18 U.S.C. § 2256(8)(C). Boland also published an apology in the Cleveland Bar Journal, stating, “I do recognize that such images violate federal law.” R. 73-1 at 12.

His argument in the initial case was that one kind of illegal image could be mistaken for another kind of illegal image.

In court again, after having created the images in violation of federal law, he then argued that he should be given a pass for doing so while acting as an expert witness.

Repeatedly losing court cases may be a sign of not succeeding in one's arguments.

Uhhmmm.... actually, at one time most pornography WAS considered obscene, and therefore not protected under the Constitution.

The Miller Test is the current test for obscenity, and because of the fun way common law works, anything that would have passed the Miller Test at any point in time was technically Constitutionally protected, but the courts happened to not know that. Now, the Miller Test does involve 'community standards', and those do change over time as well as what is covered in statutes. However, anything with 'serious literary, artistic, political, or scientific value' would be protected regardless of how offensive it was.

Quote:

I keep finding myself thinking that this "the Constitution doesn't protect speech that's obscene" argument is one of those things that someone read between the lines of the Constitution, or convinced a bunch of people WAS in there, to try to sneakily end run around what was meant to be an absolute, without anyone noticing that that's what they've done, and while convincing themselves that they're correct on this, too. But I also think it might come back to bite us later, because the definition of "that which is obscene" is purely subjective and arbitrary, and one person's "obscene" is someone else's beloved art.

I agree. I think (and hope) that the eventual truth we will realize is that obscenity doesn't exist as an exception to the first amendment, and that this legal doctrine was simply a long lived mistake.

You can get arrested for cartoon pictures of fictional characters having sex in the US too.

So all that (inexplicable) fan-art floating around that features various cartoon characters basically acting out 'The Aristocrats' is illegal? Better tell Google that their unfiltered image-search results are subject to legal scrutiny. Hell, just the Jetsons alone are a one-family life sentence.

There were no obscene images of children. There were images in which childrens faces were inserted. At no time were children exposed, harmed, or sexualised.

This is actually the one point on which you're mistaken under the law. First off, children were sexualized in the pictures. They depicted children engaged in sex. Sexualization. Secondly, the point of child pornography laws is not just to protect children from victimization, it's also to prevent the circulation of the material in the first place, regardless of origin, to ensure there's nothing out there a pedophile could find to feed his or her appetite. That the children themselves[i] weren't having their pictures taken while being abused is irrelevant. It's that the picture is [i]of real children being abused that is the problem.

The TL;DR: It doesn't matter that actual children weren't abused. You can't make true to life wank material for pedos. It's against the law.

Why would he? You already had your mind made up before you wrote the article.

That you can create an illustration in 5 minutes that would have you convicted of creation of child pornography and registered as a sex offender for life is a serious issue worthy of a real journalist.

It is illegal to produce such that would titillate or otherwise inflame the perverted passion of the deviate child-molester. The rules are such that even to acknowledge that such a mentality exists is in and of itself prohibited.To produce for any purpose an image that defiles the holy sanctity of the protected infant is a crime. We are totally involved with child-worship, which speaks volumes to our failings and does nothing to assist infantile development.How deep is the denial? (Not the river in Egypt, idiot)Do you not remember what horny little assholes we were when we were very, very young?

Morality cannot be legislated. It's simply impossible because the former is rooted in the individual and the latter is a product of civilization. The evolution of the individual always outstrips the capacity for the society to respond appropriately. This "infantile sexuality" obsession will eventually fade away.

Like pot, it's just a phase. There aren't any more people sexually attracted to children now than there ever were, and somehow we avoided annihilating ourselves over it. I guess the prosecuting entities are just bored.

Or maybe the power-lust seeks blood. and everybody is enfranchised to HATE sex criminals...

This is actually the one point on which you're mistaken under the law. First off, children were sexualized in the pictures. They depicted children engaged in sex. Sexualization. Secondly, the point of child pornography laws is not just to protect children from victimization, it's also to prevent the circulation of the material in the first place, regardless of origin, to ensure there's nothing out there a pedophile could find to feed his or her appetite. That the children themselves[i] weren't having their pictures taken while being abused is irrelevant. It's that the picture is [i]of real children being abused that is the problem.

The TL;DR: It doesn't matter that actual children weren't abused. You can't make true to life wank material for pedos. It's against the law.

No, constitutional child pornography laws are just to protect children from victimization. There are/were unconstitutional child pornography laws like the Child Pornography Prevention Act that had such purposes, but they are unconstitutional. A second attempt at this law happened shortly after SCOTUS laid the smack down on the first act, where they pretty much just added the word 'obscene' to it.

Also, from a practical standpoint, your idea is likely going to be a lot more harmful to children. If an appetite isn't fed with a substitute, then many will get hungry for the real thing. Let them have their tofu so they don't go out for a burger.

That you can create an illustration in 5 minutes that would have you convicted of creation of child pornography and registered as a sex offender for life is a serious issue worthy of a real journalist.

If you're going to do it, do it without incorporating any images of real children.

Then when you go to jail, I'll post a nice comment saying that although I find your actions disgusting and abhorrent, I don't think you should be there.

There were no obscene images of children. There were images in which childrens faces were inserted. At no time were children exposed, harmed, or sexualised.

This is actually the one point on which you're mistaken under the law. First off, children were sexualized in the pictures. They depicted children engaged in sex. Sexualization. Secondly, the point of child pornography laws is not just to protect children from victimization, it's also to prevent the circulation of the material in the first place, regardless of origin, to ensure there's nothing out there a pedophile could find to feed his or her appetite. That the children themselves[i] weren't having their pictures taken while being abused is irrelevant. It's that the picture is [i]of real children being abused that is the problem.

The TL;DR: It doesn't matter that actual children weren't abused. You can't make true to life wank material for pedos. It's against the law.

A fellow named Rick Falkvinge, founder of the Swedish and first Pirate Party, has written a couple of REALLY compelling articles on why the direction these things have been going in lately is a very, very bad idea, harming large numbers of innocent people and NOT stopping the problem these laws were originally devised to stop and in fact is actually making it harder to stop the real, original problem. The title of the first one will probably make you blow a gasket at first glance. Ignore the title of the first one and read the damned article anyway! The contents of these two articles will probably shock the hell out of you, and not for the reasons you might think.

A fellow named Rick Falkvinge, founder of the Swedish and first Pirate Party, has written a couple of REALLY compelling articles on why the direction these things have been going in lately is a very, very bad idea, harming large numbers of innocent people and NOT stopping the problem these laws were originally devised to stop and in fact is actually making it harder to stop the real, original problem. The title of the first one will probably make you blow a gasket at first glance. Ignore the title of the first one and read the damned article anyway! The contents of these two articles will probably shock the hell out of you, and not for the reasons you might think.

Inserting the faces of real children into pornographic images sexualizes them.

AngryChris wrote:

First off, children were sexualized in the pictures.

I would argue that this is sexualizing the pictures, not the children themselves. Sexualizing children would be more along the lines of those pre-teen modeling pictures in skimpy near-nude outfits and suggestive poses (like certain eastern-european lolita modeling sites). They should go after those people instead.

The fact that people can get arrested and fined for importing drawings from Japan is silly, no matter what the laws say.

This is actually the one point on which you're mistaken under the law. First off, children were sexualized in the pictures. They depicted children engaged in sex. Sexualization. Secondly, the point of child pornography laws is not just to protect children from victimization, it's also to prevent the circulation of the material in the first place, regardless of origin, to ensure there's nothing out there a pedophile could find to feed his or her appetite. That the children themselves[i] weren't having their pictures taken while being abused is irrelevant. It's that the picture is [i]of real children being abused that is the problem.

The TL;DR: It doesn't matter that actual children weren't abused. You can't make true to life wank material for pedos. It's against the law.

No, constitutional child pornography laws are just to protect children from victimization. There are/were unconstitutional child pornography laws like the Child Pornography Prevention Act that had such purposes, but they are unconstitutional. A second attempt at this law happened shortly after SCOTUS laid the smack down on the first act, where they pretty much just added the word 'obscene' to it.

Also, from a practical standpoint, your idea is likely going to be a lot more harmful to children. If an appetite isn't fed with a substitute, then many will get hungry for the real thing. Let them have their tofu so they don't go out for a burger.

I want to take absolutely no credit for the idea. I agree with you and I think current law with regards to child pornography is abhorrent for exactly the reasons outlined in the blog posts a later poster cites. I will wager that anyone in this forum who has ever surfed for pornography on the Internet in any form is, under the law, guilty of criminal possession of child pornography. There's just too much out there on random sites that's illegal and even if you have no intent, even if you don't know that image is sitting in your browser cache, you're guilty, period.

The fact that people can get arrested and fined for importing drawings from Japan is silly, no matter what the laws say.

Not really. There are plenty of parallels. If something is legal in one country but not in another then importing it usually results in legal action. It doesn't matter if it's importing unlicensed pharamceuticals, untaxed alcohol or unregistered firearms, it's all illegal.

Maybe laws have overstepped the mark and are too broad in scope, they seem like a sensible precaution to me, but if people want to legally import drawings/images of the nature suggested they're gonna have to have to make their case in court. And obviously not in the way the person in the article did.

I am especially curious to know what arguments in support of simulated material can be made. To the majority it's unacceptable. I've seen that view oft repeated, I challenge anyone to make a persuasive argument otherwise.

another ars account wrote:

sonolumi wrote:

I'm interested to read an alternative view on the issue, particularly if it is well thought out, but there's no way I'm going to follow a link with that title.

How obscene is it if one were to start with an image of a child actually being harmed, and digitally alter things into a more wholesome and benign scenario?

Utterly, utterly tasteless. If that's what freedom of expression means to you, it's a sad statement.

For those that don't recognize the child in the picture, it's Kim Phuc, after being napalmed and having serious burn injuries:

Kim Phuc and her family were residents of the village of Trang Bang, South Vietnam. On June 8, 1972, South Vietnamese planes dropped a napalm bomb on Trang Bang, which had been attacked and occupied by North Vietnamese forces. Kim Phuc joined a group of civilians and South Vietnamese soldiers who were fleeing from the Caodai Temple to the safety of South Vietnamese–held positions. A South Vietnamese Air Force pilot mistook the group for enemy soldiers and diverted to attack. The bombing killed two of Kim Phuc's cousins and two other villagers. Kim Phuc was badly burned and tore off her burning clothes. Associated Press photographer Nick Ut's photograph of Kim Phuc running naked amid other fleeing villagers, South Vietnamese soldiers and press photographers became one of the most haunting images of the Vietnam War.

Edit: This post is unrelated to TGV's post above which appeared while I was writing and posting this one.

OK I'm going to make a go of the counter argument myself.

Where do you draw the line? (no pun intended)

It seems generally ok to tell a story in written form of an abusive situation. This could be a survivors account of actual events, a work of fiction or a journalist retelling the facts.

Are the pictures in the minds of the readers any less abhorrent/arousing than actual pictures?

Is it because some pictures that have been simulated are so convincing that might confuse law enforcement trying to stop real abuse photos being distributed?

Then what of pictures that are obviously not real? Something that is clearly computer generated &/or hand drawn? Or something that is beyond the realms reality, children with mythical creatures for example?

Or is it just the matter that something sexual happening to a child in picture form is unacceptable no matter what method was used in its creation?

A fellow named Rick Falkvinge, founder of the Swedish and first Pirate Party, has written a couple of REALLY compelling articles on why the direction these things have been going in lately is a very, very bad idea, harming large numbers of innocent people and NOT stopping the problem these laws were originally devised to stop and in fact is actually making it harder to stop the real, original problem. The title of the first one will probably make you blow a gasket at first glance. Ignore the title of the first one and read the damned article anyway! The contents of these two articles will probably shock the hell out of you, and not for the reasons you might think.

I'm interested to read an alternative view on the issue, particularly if it is well thought out, but there's no way I'm going to follow a link with that title.

Could you please, in so far as is possible, summarise the articles and perhaps directly quote a few salient points.

Early on in the article, it gives these three bullet points:

* It would not be effective, and possibly counterproductive, in catching child molesters.* It would lead to censorship without accountability.* Reporters complained it would undermine journalistic freedom that has stood intact for centuries.* Constitutional and political science scholars pointed out that it undermined centuries of free speech/expression traditions in a way that would be used by special interests to silence opponents of business interests unrelated to child porn.

And the article is then broken down into three sections

1. The ban prevents catching/jailing child molesters.

Here, he points out that someone wearing a video camera built into ones glasses to record and later blog his everyday activities (these devices ARE coming in the near future) could literally walk in unawares on someone molesting a child, say in a public park, and if he turned in that video evidence to get that person rightfully prosecuted for it, HE would wind up in bigger, deeper trouble for having the footage than the one raping the child, so therefore that person with the glasses-camera would have little choice but to delete the footage to save his own skin, nevermind that this child has just been mentally harmed for life, and is now seeing anyone who COULD help her, that walked accidentally in on the act, turn away immediately and delete all evidence.

He also said this in bold:

Quote:

Is possession of child pornography harshly banned because we want to catch child rapists and molesters, or because we’re so uncomfortable with its existence that we want to legislate it out of our own field of view, raped children be damned as long as we’re feeling comfortable ourselves?

2. The laws brand a whole generation as sex offenders.

Here he points out that the law makes little to no differentiation between footage of a hypothetical 7 year old girl being brutally raped (an act which he agrees is very, very wrong) and footage of two 17 year olds "who have eyes for nothing in the world but each other making consensual passionate love" and he goes on to mention things like that young people are more and more likely to record themselves naked, or doing sexual things to themselves, maybe even distribute that to other teen age friends, but these are things that now by law could get them permanently placed onto a "sexual offenders" list, or way worse.

3. The free speech war is won/lost at the battle of child porn.

Here he talks about how a lot of outfits really like the blow-your-gasket-reaction sorts of laws that ban information, because... well.... here is another direct quote from the article:

Quote:

As long as the ban on child porn remains, special interests will use this open wound in our enlightenment traditions of information freedom to infest it with their own ideas of what other information, speech, and communication should be banned and prohibited. We’ve seen everything from gambling companies to the copyright industry use child porn as a pretext for censoring business competition, consequences to society at large be damned, just like in the “rape-and-shoplifting” example above.

He compares all of this to book burning, a form of electronic book burning, and goes on to say this, in bold:

Quote:

Child pornography is horrible and awful from every angle and in every aspect. But it is not dangerous to the fabric of society. Censorship and electronic book burning, however, is.

At no point does he defend the existence of or the acts of child molesters, or of child molestation itself, in fact he is as much against these as you are and I am, but these laws have gone well beyond the prevention and prosecution these. The article does WAY better at explaining it than I have. read the article!

“Child pornography is great,” the man said enthusiastically. “Politicians do not understand file sharing, but they understand child pornography, and they want to filter that to score points with the public. Once we get them to filter child pornography, we can get them to extend the block to file sharing.”

edited to add:One of the other salient points being made here is that people in powerful positions, wanting to influence laws and society, can use major-hot-button issues like child pornography, or terrorism, to enact laws that are devised to remove a great many other things that have nothing at all to do with child pornography or with terrorism, and that the removal of those other things from our grasp, or the act of removing those things from our grasp, can have far more damaging effects on our society than child pornography or terrorism, which isn't to say that child pornography or terrorism aren't horribly bad things, because they are.

Inserting the faces of real children into pornographic images sexualizes them.

AngryChris wrote:

First off, children were sexualized in the pictures.

I would argue that this is sexualizing the pictures, not the children themselves. Sexualizing children would be more along the lines of those pre-teen modeling pictures in skimpy near-nude outfits and suggestive poses (like certain eastern-european lolita modeling sites). They should go after those people instead.